Citation Nr: 0914037
Decision Date: 04/15/09 Archive Date: 04/24/09
DOCKET NO. 08-07 505 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased disability rating for
service-connected lumbar spine disability, with degenerative
joint disease of the thoracic spine, currently evaluated as
40 percent disabling.
2. Entitlement to an increased disability for service-
connected cervical spine disability, currently evaluated as
10 percent disabling.
3. Entitlement to a total disability rating based upon
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. Whitehead, Associate Counsel
INTRODUCTION
The Veteran had active service from June 1978 to November
1982, from October 1985 to October 1989, and from January
1990 to September 1999.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a March 2007 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida, which denied the above-referenced
claims.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Unfortunately, a remand is required in this case prior to
further review of this matter. Although the Board sincerely
regrets the additional delay, it is necessary to ensure that
there is a complete record upon which to decide the Veteran's
claim so that she is afforded every possible consideration.
VA has a duty to make reasonable efforts to assist the
claimant in obtaining evidence necessary to substantiate the
claim for the benefit sought, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. 38 U.S.C.A. § 5103(a) (West 2002 &
Supp. 2007); 38 C.F.R. § 3.159(c) (2008).
In her February 2008 VA Form 9, the Veteran requested a
Central Office Hearing before a member of the Board in
Washington, D.C. Thereafter, over two weeks prior to her
scheduled hearing, the Veteran submitted a written request to
postpone her hearing date. She further communicated her
current desire to be scheduled for a Video Conference hearing
before a member of the Board, to be held at the RO.
Consequently, the Board finds that it has no alternative but
to remand this matter so that the Veteran can be afforded her
requested hearing.
Accordingly, the case is REMANDED for the following action:
The RO/AMC shall schedule the Veteran for
a Video Conference Hearing at the RO,
before a Veterans Law Judge, in accordance
with applicable law.
Thereafter, subject to current appellate procedures, the case
shall be returned to the Board for further appellate
consideration. The appellant has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).